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SQE 1 > Constitutional and Administrative (Public) Law - FLK 1 > Flashcards

Constitutional and Administrative (Public) Law - FLK 1 Flashcards

1
Q

What is parliamentary sovereignty?

A

Parliament can pass any law it wants and no one (including the courts) can challenge an Act of Parliament. It can also unmake a law.

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2
Q

What are the domestic limitations of parliamentary sovereignty?

A
  • the impact of devolution
  • act of union
  • the concept of constitutional statutes that cannot be impliedly repealed
  • the ‘manner and form’ debate
  • the rule of law
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3
Q

What are the european limitations of parliamentary sovereignty?

A
  • retained EU law
  • EU Withdrawal Act 2018
  • Human Rights Act 1998
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4
Q

What is express and implied repeal of statute?

A

A later statute may expressly repeal the contents of an earlier statute

A later statute will impliedly repeal the contents of an earlier statute to the extent of any inconsistency between them.

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5
Q

What is devolution?

A

The UK Parliament has devolved legislative powers to the Scottish Parliament, Welsh Parliament, and the Northern Ireland Assembly.

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6
Q

What are the powers of the three devolved legislatures?

A

Can only pass Acts on devolved matters, with reserved matters remaining with the UK Parliament. Only have powers to make laws on the subjects specified by the UK Parliament.

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7
Q

What is the role played by the Sewel Convention?

A

UK parliament can legislate in devolved areas but under the Sewel convention does not normally do so without the consent of the relevant devolved legislature.

However, the convention does not limit parliamentary sovereignty, so there is no legal obligation to gain consent. The UK government can override the wishes of the devolved legislatures.

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8
Q

How is the UK a constitutional Monarchy?

A

The Monarch exercises their legal powers as part of a Parliamentary system of the government.

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9
Q

What is the Monarch’s position in the UK?

A

Head of state of the UK of Great Britain and Northern Ireland.

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10
Q

What is the Monarch’s position in the judicial system?

A

The legal and formal head of the executive and legislature and the constitutional head of the judicial system.

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11
Q

Is the Monarch involved in politics?

A

The Monarch does not participate in political processes of the government. Many duties are carried out by an executive whose members (MPs) are accountable to Parliament.

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12
Q

When does the Monarch exercise personal powers?

A

When advised by the PM and ministers.

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13
Q

Who appoints the members that form the crown’s government?

A

The Crown appoints the PM as well as the Secretaries of State and ministers.

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14
Q

Who is the Monarch bound by?

A

PM.

Has the right to consultation, to encourage or warn the government but is bound to act on the advice of his ministers.

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15
Q

What are conventions?

A

Non-legal rules of the UK constitution, that aid the operation of the UK constitution.

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16
Q

Are conventions binding?

A

Yes, they are binding political rules.

However, the courts have no remedy to grant for their breach.

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17
Q

Are conventions enforceable?

A

The courts will not enforce them.

They can recognise the existence and operation of them when deciding a legal questions and take them into account when interpreting statutes and constitutions, but they cannot give legal ruling on its operation.

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18
Q

Are convention law?

A

No, the only way a constitutional convention can become law is by statute.

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19
Q

What is prerogative power?

A

Remaining royal powers and privileges of the Monarch, and their exercise does not require permission of Parliament though the courts decide which powers remain.

“The residue of discretionary or arbitrary authority which at any given time is legally left in the hand of the crown” - Dicey

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20
Q

What can replace prerogative powers?

A

Acts of Parliament replace prerogative powers.

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21
Q

When will the government use the prerogative?

A

When it does not have the statutory power.

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22
Q

What happens if the government has the same power under prerogative and statute?

A

It must use statutory power, and the prerogative goes into suspension.

23
Q

Are prerogative powers subject to judicial review?

A

Unlike statutory powers, prerogative powers were traditionally not subject to judicial review. However, this changed after the GCHQ case.

However, pp that affect individual rights of citizens could be judicially reviewed.

24
Q

How did the GCHQ case affect prerogative powers?

A

The exercise of most prerogative powers can be examined by the courts in the same way that statutory powers are examined.

25
Q

What is the basis of review for prerogative powers?

A

Illegality, irrationality, and/or impropriety.

26
Q

What is parliamentary privilege?

A

Proceedings in parliament are privileged.

Legal immunities are available to member of both Houses of Parliament so that they can perform their duties without outside interference.

27
Q

What is the regulation of parliament?

A

Parliament regulated its own proceedings and punishes its own members who break its rules.

28
Q

What are the main parliamentary privileges?

A
  1. Freedom of speech
  2. Exclusive Cognisance
29
Q

What is parliament limited to in relation to delegated legislation?

A

Can only scrutinise but cannot amend

30
Q

What are the two procedures that can be followed once stated by the ‘enabling act’?

A
  1. Affirmative resolution procedure
  2. Negative resolution procedure
31
Q

What happens to secondary legislation if there is a repeal?

A

If parent act is repealed, the secondary legislation made under it ceases to have effect.

32
Q

Can delegated legislation be judicially reviewed?

A

Yes, it is subject to judicial review and may be declared invalid.

33
Q

What does the Public Order Act 1986 concern?

A

The control of protests and assemblies.

34
Q

What does the POA give police?

A

extensive powers to regulate the conduct of processions and public assemblies.

35
Q

Why did the Criminal Justice and Public Order Act 1994 replace the original POA?

A

Added preventative powers to deal with assemblies not dealt with by the original act.

36
Q

What does the POA require in relation to processions?

A
  1. Need to give advance notice
  2. Power to impose conditions
  3. Power to ban
37
Q

What does the POA require in relation to assemblies?

A

Power to impose conditions, but they cannot ban them.

Police only have the power to ban trespassory assemblies.

38
Q

What is the test to exercise power of breach of peace?

A

Preventing an actual or reasonably imminent breach of the peach. Must be imminent (about to happen), some time in the near future is not sufficient.

39
Q

Is a breach of peace a criminal offence?

A

No, but it carries a power of arrest. However, they may be released with no charge.

40
Q

What is the nature of judicial review?

A

JR is about the way the decision is taken and not the merits of the decision itself (which would be an appeal)

41
Q

When is judicial review available?

A

Only where no right of appeal exists or where such rights have been exhausted.

42
Q

What is the purpose of judicial review?

A

Courts are ensuring that the executive’s exercise of power has been done in the correct way and using the correct procedure.

43
Q

What are the limits of judicial review?

A

To make a claim for JR, the claimant must meet the following:

  1. Does the claim raise public law issues?
  2. Is the decision made by a public body? (source of power test, nature of power test)
  3. Does the claimant have ‘sufficient interest’ in the matter to which the claim relates?
  4. Has the claim been brought within the given time? - 3 months is the max.
  5. Has the court’s JR jurisdiction been excluded by parliament?
44
Q

What is the process of judicial review?

A

Claimants submits their JR application to the Administrative Court.

Stage 1: Permission stage
Stage 2: Full hearing of claim for JR

45
Q

Supervisory nature - JR and rule of law

A

Upholds rule of law by ensuring power is not exercised by the executive in an arbitrary and oppressive manner.

46
Q

Supervisory nature - JR and separation of powers

A

Forms the supervisory jurisdiction of the High court by ensuring the executive does not exceed the powers the legislature has granted to it.

47
Q

Supervisory nature - JR and parliamentary sovereignty

A

Ensures public bodies act in accordance with the powers granted by Parliament and do not exceed or abuse those powers.

48
Q

What are the remedies available in JR cases?

A

Remedies are discretionary. May not be granted if will be ineffective or not in public interest.

  1. Prerogative remedies - quashing order, mandatory order, and prohibitory order.
  2. Non-prerogative remedies - declarations, injunctions and damages.
49
Q

What are the main grounds for JR?

A

illegality, irrationality, procedural impropriety, and legitimate expectation.

50
Q

What are the main categories of illegality - JR?

A

A ground for challenge.

Main categories:
- acting without legal authority
- error of law
- jurisdictional error of fact
- policy
- fettering discretion by applying a policy too rigidly
- fettering discretion by acting under the dictation of another
- improper or unauthorised purpose
- dual purpose
- considerations

51
Q

What is the test for irrationality - JR?

A

A ground for challenge where a decision is ‘so unreasonable’ that ‘no reasonable authority could ever have come to it’ or ‘so outrageous’ in its defiance of logic that ‘no sensible person’ could have reached it.

Threshold is high but can be reached.

52
Q

What are the main categories of procedural impropriety - JR?

A

A ground for challenge based on the way in which a decision has been reached.

Main categories:
- Procedural fairness
—> the right to fair hearing
—> the rule against bias
——-> direct interest and indirect interest
- Breach of statutory procedural requirements

53
Q

What is legitimate expectation - JR?

A

Either procedural or substantive, can arise as a result of a promise made by a decision-maker. The promise should be honoured unless public interest prevails.

SQE 1 (10 decks)

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